PARTLY DISSENTING OPINION OF JUDGE ZIEMELE

1. I voted against the finding of the majority that it is not necessary to determine whether there has been a violation of Article 14 of the Convention in conjunction with Articles 2, 3 and 13.

2. It is to be recalled that in the case of Nachova and Others v. Bulgaria ( nos. 43577/98 and 43579/98, 26 February 2004 ), the Chamber established a fundamental principle which was subsequently confirmed by the Grand Chamber as concerns the obligation to investigate possible racist motives behind acts of violence by State agents. Thus the principle reads: “... [W]hen investigating violent incidents and, in particular, deaths at the hands of State agents, State authorities have the additional duty to take all reasonable steps to unmask any racist motive and to establish whether or not ethnic hatred or prejudice may have played a role in the events. Failing to do so and treating racially induced violence and brutality on an equal footing with cases that have no racist overtones would be to turn a blind eye to the specific nature of acts that are particularly destructive of fundamental rights. A failure to make a distinction in the way in which situations that are essentially different are handled may constitute unjustified treatment irreconcilable with Article 14 of the Convention. Admittedly, proving racial motivation will often be extremely difficult in practice. The respondent State ' s obligation to investigate possible racist overtones to a violent act is an obligation to use best endeavours and not absolute” (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 160 , ECHR 2005 ‑ VII ).

3. The applicant in the present case alleged that the extreme brutality with which the victim had been treated was partly due to his Roma origin. The Chamber indeed found a violation of Articles 2 (in both aspects, substantive and procedural) and 3. As to the latter, the Court concluded that the victim had been subjected to torture. The circumstances in which the young and healthy 27-year-old m a n died at the hands of State authorities, as established by the Court (see paragraphs 111-125), are particularly grave. In the circumstances of the Nachova case, the Grand Chamber noted at least two reasons for the obligation to investigate possible racist motives to arise: the alleged racist language and the highly disproportionate use of force. It is true that in the case at hand there is no information about any racist language used by the police officers. It is, however, so obvious that the force used and the absolute lack of investigation into an evidently suspicious death were absolutely disproportionate to the circumstances of the case involving a young Roma man who had allegedly committed a robbery.

4. Furthermore, the Court cannot ignore the fact that various international bodies have underlined the problem of police abuse with respect to the Roma community in Romania and that two international bodies have specifically mentioned the case of the victim as such an example of Roma abuse (Report by Sir Nigel Rodley, Special Rapporteur on the Question of Torture, submitted to the United Nations Commission on Human Rights, Resolution no. 1999/32; Amnesty International report on Romania, 2002). I also note that the case file contains a response by the Romanian Government to the Court ' s specific questions on statistical data in which the Government could not provide any such data concerning investigations into violence by police officers against persons of Roma origin. The Government argued that to collect such information would be against the laws on data protection. Noting that racially motivated violence is a problem in the country, certainly at the time of the events in the case at hand, the Government ' s reply in itself is inconsistent with their obligations to fight against racism under both the European Convention on Human Rights and the United Nations standards.

5. I believe that the Court has been very clear about the special duty to unmask racist motives behind the actions of State agents. In the Nachova case it explained very clearly that it was a duty apart and that failing to comply with it or treating racist violence on an equal footing with other violence would be turning a blind eye to the particularly destructive character of racism. The Court further stated that this obligation was part of Article 2, but also part of Article 14. I therefore regret the decision of the majority, despite the applicant ' s complaints concerning possible racist motives behind the events leading to the death of Gabriel Carabulea, not to examine these allegations or the compliance by Romania with its duty to investigate such motives in the circumstances of the case. I believe that this decision goes against the Court ' s own case-law.

[1] See, for example , Reports and Observations of the Committee that monitors the implementation of the United Nations Convention on the Elimination of All Forms of Racial Discrimination. See, in particular, its Concluding Observations on Romania of the Committee on the Elimination of Racial Discrimination of 22 September 1995. See also Concluding Observations on Romania of the Committee on the Elimination of Racial Discrimination of 19 August 1999; See also Report by Sir Nigel Rodley, Special Rapporteur on the Question of Torture, Submitted Pursuant to the United Nations Commission on Human Rights Resolution no. 1999/32; see also Reports by the European Commission against Racism and Intolerance (ECRI) of the Council of Europe.

[2] See, for example, t he ECRI Report of 22 June 2001.

[3] See Articles 2, 4, 5 and 6 of the United Nations International Convention on the Elimination of All Forms of Racial Discrimination which was ratified by Romania in 1970.

[4] See the Report by the European Commission on the Situation of Roma in an Enlarged European Union (2004) and, particular, paragraph 3 of the chapter entitled “Policy Changes”.

[5] The European Union Council Directive 2000/43/EC explicitly included, in its paragraph 15, statistics among the possible means of establishing discrimination .

[6] See publication entitled “Ethnic Statistics” by Dimitrina Petrova and published by European Roma Rights Centre, 21 July 2004.